Friday, 3 June 2011

Cherfi v G4S Security Services Ltd

The Employment Appeals Tribunal has handed down a decision in the case of Cherfi v G4S Security Services Ltd Bailii: UKEAT 0379_10_2405 which involved questions over the right of a Muslim Security Guard to leave his workplace on a Friday for afternoon prayers in a Mosque.

Mr Cherfi, a Muslim, was employed as a security guard by G4S Security Services Ltd (G4S). From 2005, he worked at a client's site in Highgate. He regularly left the site on Friday lunchtimes to attend Finsbury Park Mosque. In October 2008, G4S told Mr Cherfi that he could no longer leave the Highgate site at lunchtimes, as G4S was contractually obliged to ensure that a specified number of security guards were present throughout operating hours.

G4S offered to change Mr Cherfi's contract to a Monday to Thursday pattern with the option of him working either on a Saturday or a Sunday instead of Friday. Mr Cherfi was not prepared to work at the weekend and instead stopped working Fridays, taking them off as sick leave, annual leave or authorised unpaid leave. In March 2009, G4S told Mr Cherfi that this arrangement could not continue.
Mr Cherfi brought a claim for indirect religious discrimination under Under regulation 3(1)(b) of the Employment Equality (Religion or Belief) Regulations 2003 (now replaced by sections 10 and 19 of the Equality Act 2010)

He claimed that G4S's requirement that security guards be on site at Friday lunchtimes placed Muslims at a particular disadvantage. Watford employment tribunal rejected his claim, deciding that the requirement was objectively justified and a proportionate means of achieving the legitimate aim of meeting the employer's operational needs and that decision by the Tribunal was upheld by the EAT.

The Claimant relied on the 2005 case of Cross and others v British Airways plc as authority that economic considerations alone could not justify a discriminatory policy whilst the defendant relied on the 2010 case of Woodcock v Cumbria Primary Care Trust as authority that economic considerations could of themselves justify a discriminatory paractice. In this case if the requisite number of guards were not permanently on site the employer would be in breach of contract to its customer with consequent cost consequences.

The EAT considered that the financial implications of allowing the employee to leave the premises on a Friday were not the only factor in the Employers decision but, following Woodcock, it held that even if financial implications was the only factor that was sufficient to make the discriminatory policy reasonable and proportionate.

From a religious discrimination point of view the main factor that comes over is that G4S did try to accommodate Mr Cherfi in every possible way by offering him the option of working on a Saturday or a Sunday in place of working on a Friday which clearly showed a willingness to make reasonable adjustments to meet his religious needs. Once he turned down their suggestions it was very difficult to see what else the employer could reasonably have done.


David England said...

Finally, a common sense decision re religion in the courts. Thanks for the update, Neil!

Anonymous said...

I'm not so sure, arguably, they could have provided cover for him on a Friday lunchtime. They were a large company with plenty of staff. This would have been a solution which would have lead to less discriminatory impact. It is not clear that this option was explored. In addition, the discriminatory impact on Muslim employees as a whole was not properly explored in this case.